The Uneasy History of Experiential Education in U.S. Law Schools, 122 Dick

Volume 122 Issue 2 Dickinson Law Review Winter 2018 The neU asy History of Experiential Education in U.S. Law Schools Peter A. Joy Washington University in St. Louis School of Law Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlr Part of the Law and Society Commons, Legal Education Commons, Legal Ethics and Professional Responsibility Commons, Legal History Commons, and the Legal Profession Commons Recommended Citation Peter A. Joy, The Uneasy History of Experiential Education in U.S. Law Schools, 122 Dick. L. Rev. 551 (2018). Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol122/iss2/4 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. The Uneasy History of Experiential Education in U.S. Law Schools Peter A. Joy* This article explores the history of legal education, particularly the rise of experiential learning and its importance. In the early years of legal education in the United States, law schools devalued the development of practical skills in students, and many legal educators viewed practical experience in prospective faculty as a “taint.” This article begins with a brief history of these early years and how legal education subsequently evolved with greater involvement of the American Bar Association (ABA). With involvement of the ABA came a call for greater uniformity in legal education and guidelines to help law schools establish criteria for admissions and curricula. This article also discusses the influence of the ABA Standards, particularly Stan- dard 302, in legal education. In the latter half of the 20th century, it became clear that a legal education without any professional development or practical training was deficient. A new ABA task force dedicated to “narrowing the gap” between practitioners and professors published the MacCrate Report, de- tailing the skills and values law students should develop before entering the profession. Lastly, although the ABA Standards have done a great deal in fixing these deficiencies, there is still more that law schools must do on their own. This article con- cludes by providing suggestions for how law schools can improve legal education in three ways: 1) by making essential lawyering skills and professional values part of the core curriculum and co- ordinating the teaching of these lawyering skills and values through a combination of simulation, clinic, and externship courses; 2) by providing every law student with a real-life practice experience in which each student is able to assume the role * Henry Hitchcock Professor of Law, Washington University in St. Louis School of Law. This article builds upon some ideas I have explored previously. See Peter A. Joy, Evolution of ABA Standards Relating to Externships: Steps in the Right Direction?, 10 CLINICAL L. REV. 681 (2004); Peter A. Joy, Law Schools and the Legal Profession: A Way Forward, 47 AKRON L. REV. 177 (2014). I thank Laurel Terry for suggesting that I write this article, and for her very helpful suggestions to an initial draft. 551 552 DICKINSON LAW REVIEW [Vol. 122:551 of a lawyer; and 3) by developing their curricula to respond to legal needs for today and the future. Experiential education in U.S. law schools has an uneasy history. Until the turn of the 20th century, most people became lawyers through “only on-the-job legal education,”1 which was primarily through an apprenticeship with an experienced lawyer.2 At its best, the apprentice training involved “close supervision of a student by his principal in real-life encounters,” but, in reality, “few apprenticeships worked out that way.”3 Even the best law offices rarely had sufficiently diverse practices to offer good, comprehen- sive training, and as the country matured, there was mounting pres- sure to improve legal training and to raise the standards of the legal profession.4 Aiming to improve the quality of legal education, universities increasingly began to offer law as a course of academic study start- ing in the 1870s.5 By the 1890s, law schools increasingly adopted the casebook method, which Harvard Law School appropriated and promoted,6 as a popular method for preparing students for a career in law.7 University administrators favored the casebook method as 1. ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850STOTHE 1980S, 24 (1983). 2. American legal education through the nineteenth century was primarily conducted through applied skills training in the apprenticeship system, though some combined on-the-job training either with lectures at proprietary law schools or with a general education approach to law at universities and colleges. See Charles R. McManis, The History of First Century American Legal Education: A Revisionist Perspective, 59 WASH. U. L.Q. 597, 617–18 (1981). 3. STEVENS, supra note 1, at 24. 4. Id. 5. Id. at 36. After the American Revolution, there were a number of private proprietary law schools established, such as the Litchfield Law School founded in Connecticut in 1784. Id. at 3. From the 1820s to 1840, 12 colleges or universities had affiliated with or developed professional law schools. ALFRED Z. REED, TRAINING FOR THE PUBLIC PROFESSION OF THE LAW , 152 (1921). Among these was a law school in Carlisle, Pennsylvania, connected with Dickinson College. Id. It was not until the 1870s, however, that law started to be fully accepted as a field of university study. STEVENS, supra note 1, at 36. 6. In spite of popular belief, Christopher Columbus Langdell did not originate the casebook method. He did, however, successfully promote its use while he was dean of Harvard Law School from 1870–95. See JOEL SELIGMAN, THE HIGH CITA- DEL: THE INFLUENCE OF HARVARD LAW SCHOOL 32–42 (1978). Several years before Langdell introduced the casebook method at Harvard, John Norton Pome- roy, a professor of the University of New York City (now New York University), used a case method of instruction. See, e.g., STEVENS, supra note 1, at 52 n.14 (describing how other scholars confirm Pomeroy’s use of the case method prior to Langdell). 7. At first, only some elite law schools adopted the casebook method champi- oned by Langdell, but other law schools throughout the country soon followed. 2018] EXPERIENTIAL EDUCATION IN U.S. LAW SCHOOLS 553 well, in part because it allowed a faculty member to teach a relatively large number of students, which enabled universities to pro- vide a legal education to students at a relatively low cost.8 Just as Harvard advanced the casebook method as the struc- ture for learning law, Harvard also certainly signaled a shift in who taught law by redefining the qualifications needed to become a law teacher. In 1873, Harvard Law School appointed James Barr Ames, who was a recent graduate, as an assistant professor of law. Christopher Columbus Langdell, Dean of Harvard Law School, urged Ames’s appointment, stating: “What qualifies a person, therefore, to teach law, is not experience in the work of a lawyer’s office, not experience in dealing with men, not experience in the trial or argument of cases, not experience, in short, in using law, but experience in learning law.”9 Until Ames’s appointment, law was either taught by practicing lawyers and judges for a few hours a week, or, alternatively, by some lawyers and judges who left practice after having substantial practice experience to become law teachers.10 Ames proved popular with his students, and the president of Harvard, Charles William Eliot, predicted that over time, more law professors would be those “who had never been on the bench or at the bar.”11 By 1894, Eliot’s prediction had largely come true at Harvard, where all eight of the full-time law professors had chosen law teaching over practice, and many other Harvard Law School graduates were teaching elsewhere.12 In 1901, “Ames estimated that ‘about See STEVENS, supra note 1, at 60–63. “By the beginning of the twentieth century, then, the case method, although far from unanimously approved, was recognized as the innovation in legal education.” Id. at 63. 8. Id. Tuition, and tuition hikes, at least in modern times, have less to do with the costs of providing an education and often more to do with a perception of quality, and resulting supply and demand. Henry E. Riggs, The Price of Percep- tion, N.Y. TIMES (Apr. 13, 2011), http://www.nytimes.com/2011/04/17/education/ edlife/edl-17notebook-t.html. Henry Riggs, President Emeritus of Harvey Mudd College, maintained that higher education tuition is a “marketing, not a cost ac- counting, decision.” Id. According to Riggs, universities price tuition at or slightly above the best in an effort to signal higher quality, and “[w]annabes price themselves accordingly.” Id. Applying Riggs’s analysis of university tuition pricing to law schools, Brian Tamanaha agrees with Riggs and maintains: “Law schools have raised their tuition to obscene levels because they can.” BRIAN Z. TAMANAHA, FAILING LAW SCHOOLS 130 (2012). 9. SELIGMAN, supra note 6, at 37 (quoting Christopher Langdell). 10. STEVENS, supra note 1, at 38. 11. Id. (citing material in ARTHUR SUTHERLAND, THE LAW AT HARVARD, 184 (1967)). 12. BRUCE A. KIMBALL, THE “TRUE PROFESSIONAL IDEAL” IN AMERICA 290 (Rowman & Littlefield 1995) (1992). 554 DICKINSON LAW REVIEW [Vol. 122:551 one-fourth of the law professors of this country give themselves wholly to the duties of their professorships.’”13 Eliot’s prediction of a law professoriate with little to no practice experience has essentially come to fruition in the United States.

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